R v Brown HC Wellington CRI 2010-032-1028

[2011] NZHC 343

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-032-1028

THE QUEEN

v

SEAN DENNIS BROWN

Hearing:         9 May 2011

Counsel:         P K Feltham for Crown

G King and E Hall for Accused

Judgment:      9 May 2011

SENTENCE OF RONALD YOUNG J

[1]      Mr Brown, you are now for sentence having been convicted by a jury of murder.  On 24 January 2007 it was your birthday.  On your way home from work you bought some alcohol to celebrate it.  When you arrived home your mother and Harry Skudder were at home drinking.

[2]      Mr Skudder had recently been living at your house.  It seems that at the end of 2006, the beginning of 2007, he had separated from his partner of seven years.  He stayed at various addresses around the Hutt Valley area and eventually began living

at Delaney Drive, next door to your family.

R V SEAN DENNIS BROWN HC WN CRI 2010-032-1028 9 May 2011

[3]      He then became friendly with your mother.  He asked if he could live at your mother’s address for a while.  She agreed and he shifted into your house.  This was not at all a happy arrangement for you.  You clearly resented his presence there and resented the way in which he treated your mother, your brother and you.  You felt he bossed you around. You were not comfortable in your own home.

[4]      To return then to the evening when Mr Skudder died.  As to what happened that evening I essentially accept your mother’s description of the events of the first part of the evening.  I do not think your description, at least up until the time of the killing, was accurate.

[5]      Your  mother  and  Mr Skudder  were  drinking  when  you  arrived  home. Eventually your mother went to bed and Mr Skudder went to the lounge where he was sleeping at your house.   You continued to drink in the kitchen.   Eventually Mr Skudder made up his bed and lay down and fell asleep.  You then went into the lounge and saw that he was asleep.   You picked up one of the heavy ornaments beside where he was sleeping and dropped it onto his head.  It seems probable that this knocked Mr Skudder unconscious.

[6]      You dropped the ornament on his head a second time.  It was at that stage you heard your mother calling from her bedroom.   You went to her and told her a lie about what was happening in the lounge.  You told her she must not come into the lounge because a gang member was in the house and was there giving Mr Skudder a beating.   You returned to the lounge and dropped the ornament on Mr Skudder’s head a third time.  It seems probable then that he was dead.

[7]      You went back to your mother’s bedroom and told her another lie about what had happened and borrowed her car keys.  You bundled up Mr Skudder’s body and put it in the boot of your car and drove off.  You drove a relatively short distance to an isolated area and dumped Mr Skudder’s body down a bank near a river.

[8]      Mr Skudder was not seen again.   The police carried out a missing person investigation but nothing arose from it.

[9]      In February 2010 the police began investigating Mr Skudder’s disappearance again.   During the course of that investigation the police interviewed your mother and father who then admitted you had told them that you had killed Mr Skudder. You were then interviewed and confessed to the killing.  You took the police to the area where you had dumped his body and it was able to be recovered.  At trial you raised the defence of provocation but the jury rejected that.

[10]     The issue for me, therefore, is whether I should impose a minimum period of imprisonment in addition to the sentence I will impose of life imprisonment, and if so, what length it should be.

[11]     I note the pre-sentence report. You do have a number of previous convictions for violent offences but I accept none especially serious. You have a large number of convictions for breaching community orders, possession of offensive weapons and property offending and other offences relating to motor vehicles.

[12]     As far as your past is concerned you have had a difficult childhood.   I am aware of that both in the pre-sentence report and the other reports obtained as to your background.       You    have,    however,    completed    an    apprenticeship    with Mr Paul Reddish.  Mr and Mrs Reddish have, I recognise and acknowledge, kindly helped you and your brother over many years and they are entitled to a special praise for their actions.  There is no doubt that your father’s abusive aggressive behaviour during the course of your childhood played a significant influence in your own life and I accept that that background did play a part in your killing of Mr Skudder.

[13]     The probation officer considered that your remorse was genuine and that there will be rehabilitative programmes in prison which you are committed to undertake which will help address your offending behaviour.

Victim impact

[14]     I want to acknowledge the victims in this case.  I have read all of the victim impact   statements   and   I  acknowledge   Mr Skudder’s   family  here   today.      I acknowledge the sad loss of a father, of a son, a brother, a wider family member and

a friend.  The victim impact reports illustrate what a severe effect his death has had on his family and I particularly, of course, a severe effect on his children now and into the future.

Crown submissions

[15]     The Crown say that a minimum period of imprisonment of fifteen years or more is appropriate. They emphasise:

(a)       that this was a callous killing;

(b)      a significant level of brutality was involved; (c)          you used a weapon;

(d)      the victim was vulnerable;

(e)       there was pre-meditation; and

(f)       they emphasise the callousness of your behaviour after the murder hiding the body.

[16]     The Crown say there are no mitigating factors and that a minimum period of fifteen years, as I have said, is appropriate.

Defence submissions

[17]     I take into account both the written and oral submissions by your lawyer, Mr King, who says that no minimum period beyond ten years is required.  He says that  your  account  to  the  police  was  materially  truthful.   You  did  not  want  the deceased to live in your home and eventually your mother wanted to eject him but could  not do so.

[18]     He  says  that  Mr Skudder  did  take  advantage  of  your  family  and  was exploitative.   Your upbringing, he says, made you particularly protective of your mother and brother and you thought Mr Skudder was a bad influence on your family.

[19]     He says that there was no clear evidence when you entered the lounge that you intended to kill and that your actions in picking up the statue and dropping it, were spontaneous and not pre-meditated and from then on shock took over.   He pointed out that you did provide assistance to recover the remains of the deceased.

[20]     He emphasises  that  you  are  remorseful  and  says  there is  nothing in  the circumstances that requires a minimum sentence beyond ten years.

[21]     My function, therefore, is to consider if a minimum period of imprisonment beyond ten years is required and if so what that should be.  It is difficult to be clear about your motivation for killing Mr Skudder.  I accept that Mr Skudder’s actions at your house were overbearing.   He did involve your mother in criminal offending. His other poor conduct at  your home, however, was,  I consider, minor perhaps irritating but no more.  The incident involving your brother and gangs seemed to me to be somewhat exaggerated.  But I accept, however, given your background that you would  have  been  especially  sensitive  to  Mr Skudder’s  slights  and  conduct  and especially protective of your mother and brother.  And in the end, perhaps slim as it is, that must have been your motivation for killing.

[22]     I accept, at least initially, you did lose the power of self control at the time when  you first dropped  the statue.   I accept  that on the evening of the killing especially you were probably offended by Mr Skudder’s actions and perhaps felt especially aggrieved given it was your birthday.  I cannot be certain that before you entered the lounge you intended to kill.  Therefore, any pre-meditation was relatively brief with respect to the initial attack.  However, after the first dropping of the statue you had the chance to reflect on what you had done but you then continued that murderous attack.

[23]     The attack, therefore, did have in my assessment, a high level of callousness and brutality.  It did involve the use of a weapon.  You waited until Mr Skudder was asleep to attack him.  He was, therefore, completely vulnerable to your attack.  You were clearly determined to kill him.  You dropped the concrete statue on his head three times.  You had the presence of mind and sufficient calmness to prevent your mother from coming out into the lounge while you were killing this man.

[24]   The other factor that is also relevant in setting a minimum period of imprisonment is your callousness after the murder.  Again you had the presence of mind to remove the body from your home and through this you were able to disguise the killing for many years.

[25]     You do have some previous convictions as I have noted for violent offending. In the circumstances I consider a minimum period of imprisonment is justified in terms of the statutory criteria.   I do not consider, however, it is required to be substantially above the minimum of ten years.

[26]     I impose, therefore, a minimum period of imprisonment of thirteen years but your sentence is life imprisonment and that is the sentence I impose on you with the

minimum period indicated.

Ronald Young J

Solicitors:

P K Feltham, Luke Cunningham & Clere, PO Box 10357, Wellington, email:  [email protected]

G King, Barrister, Lower Hutt, email:  [email protected]